5th Circuit Clears the Path for Congressional Emergency Planning
BY MARCI HARRIS
The US Court of Appeals for the 5th Circuit has delivered an important ruling that resolves a fundamental constitutional question about how Congress can operate during emergencies. In State of Texas v. Bondi, the court held that the Constitution's Quorum Clause does not require the physical presence of Members of Congress to conduct business. The decision validates Congress' pandemic-era proxy voting system and, more importantly, paves the way for better emergency preparedness going forward.
The Constitutional Question: What Does "Presence" Mean?
The Constitution states that “a Majority of each [House] shall constitute a Quorum to do Business.” The question in this case was: does that majority need to be physically present in the Capitol to count towards a quorum?
Texas challenged the Consolidated Appropriations Act of 2023, which passed during the COVID-19 pandemic, arguing it was invalid because the House passed the legislation using proxy voting, with only 205 Members physically present while 226 cast their votes through proxies. The state contended this violated the Quorum Clause's requirement for majority presence.
The lower court agreed with Texas, but the 5th Circuit reversed, delivering a thorough constitutional analysis that should settle this question for the foreseeable future.
The Court's Analysis: Text, History, and Tradition
The 5th Circuit's decision rested on three key pillars:
1. Constitutional Text
The court noted that “the plain text of the Quorum Clause contains no physical presence requirement.” The Constitution uses the term “presence,” but, as the Supreme Court explained in United States v. Ballin (1892), it simply requires “the presence of a majority” without specifying that this presence must be physical.
While Texas argued that the Clause's reference to compelling “the Attendance of absent Members” implied physical presence, the court countered with an example that may open the door for future digital quorum procedures: “We can discern no reason why, for example, if Congress chooses to assemble digitally, it could not attempt to exercise its Article I authority to compel absent Members to log onto the session.”
2. Historical Practice
The court looked to Congressional practice dating back to 1789, noting that through “unanimous consent” procedures, Congress has routinely conducted business without a majority of Members physically present for over 235 years. The decision notes that this practice has been used for significant business, including confirming 69 Supreme Court justices and passing major legislation like the Religious Freedom Restoration Act of 1993.
3. Constitutional Purpose
The 5th Circuit emphasized that the Quorum Clause's essential purpose is “to minimize the undue influence of a minority and to ensure majoritarian rule” and found that the House's proxy voting system used during the COVID-19 pandemic served this purpose well, including for the vote on the challenged appropriations bill, with over 99% of House Members voting on the measure.
The COVID-Era Proxy Voting System
The proxy voting process adopted by the House during the pandemic addressed the question of how to continue operating when gathering 435 House Members in one chamber posed serious health risks. The solution was H. Res. 965, establishing a structured proxy voting system. The rule change passed on May 15, 2020 in a partisan vote: 217 YEAS (all Democrats); 189 NAYS (3 DEM, 185 GOP, 1 IND).
The resolution required:
Written designation: Members had to submit signed letters (electronic was permitted) to designate specific colleagues as their proxies.
Limited scope: Each proxy could represent no more than 10 Members.
Exact instructions: Proxies had to receive precise voting instructions and announce them before casting votes.
Transparent process: All proxy designations were maintained in a publicly-available list.
Health emergency trigger: The system only activated when the Sergeant-at-Arms and Attending Physician certified a public health emergency.
Crucially, Section 3(b) of the resolution specified: “Any Member whose vote is cast or whose presence is recorded by a designated proxy under this resolution shall be counted for the purpose of establishing a quorum under the rules of the House.” This provision became the constitutional flashpoint in the Texas lawsuit.
Early Advocacy and Constitutional Questions
The need for Congress to be able to operate remotely during emergencies had been evident even before the pandemic. Back in November 2019 (months before the first COVID case was reported), I joined colleagues in arguing that “Congress must have the technological capability to continue functioning even when Members cannot physically gather in Washington.”
When the pandemic hit in March 2020, Daniel Schuman (founder of American Governance Institute, then at Demand Progress Education Fund) and I urged Congress to develop remote operating procedures, emphasizing how this would protect the constitutional power and checks and balances of the Legislative branch during emergencies.
While the House's proxy voting system served its purpose during the health crisis, it also raised the fundamental constitutional question that the 5th Circuit has now addressed.
The Broader Constitutional Principle
The 5th Circuit's decision resonates beyond the immediate proxy voting question. In one of the decision's most powerful passages, the court wrote:
“The Founders knew they were writing a document designed to apply to ever-changing circumstances over centuries. After all, a Constitution is ‘intended to endure for ages to come,’ and must adapt itself to a future that can only be ‘seen dimly,’ if at all.”
Congressional Voices: A Complex Political Landscape
The constitutional debate around proxy voting revealed complex dynamics within Congress. In an amicus brief, former Senate Majority Leader Mitch McConnell argued that “the Legislative branch makes its own rules and has allowed the right to conduct business...without physical presence” through long-standing unanimous consent procedures.
McConnell explained that the Senate regularly conducts business “often only in the presence of the presiding officer” through unanimous consent agreements, a practice dating back to 1789 that demonstrates the Framers' understanding that physical presence was not constitutionally required. His defense of Congressional institutional prerogatives reflected a traditionalist view that Congress should retain maximum flexibility in its operations.
This position was not universally embraced, however, even among Republicans. Texas GOP Members of Congress opposed the proxy voting system that their state was challenging in court, viewing it as an inappropriate departure from traditional legislative practice. Current House leadership has maintained this skeptical stance. Speaker Mike Johnson [R, LA] has opposed recent proxy voting proposals, including preventing a forced vote on a discharge petition that would have allowed new parents to vote by proxy. Importantly, that proposal would not have counted proxy votes toward establishing a quorum, distinguishing it from the COVID-era system that Texas challenged — yet even this more limited approach faced resistance.
Looking Forward: The Opportunity for Congressional Preparedness
With the 5th Circuit decision now in place (unless reconsidered by the Supreme Court), the constitutional question appears settled, opening the door for Congress to prepare for future emergencies rather than scrambling to develop ad hoc solutions during a crisis.
Proxy voting was a rapid response to the COVID-19 emergency but it was far from perfect. Now Congress has the opportunity to plan comprehensively for various emergency scenarios, including considering digital options that other parliaments worldwide have successfully implemented.
Learning from International Experience
Congress doesn’t need to reinvent the wheel when it comes to remote parliamentary operations. The Inter-Parliamentary Union's World e-Parliament reports from 2022 and 2024 document extensive digital adoption across global legislatures, offering valuable lessons for American lawmakers.
The pandemic served as a catalyst for digital transformation worldwide. The IPU's 2022 report revealed that over 60% of surveyed parliaments implemented some form of remote participation during the emergency, with approaches ranging from hybrid sessions allowing partial remote participation to fully virtual proceedings. Most importantly, these parliaments reported successfully preserving essential democratic functions including debate, voting, and oversight even while operating remotely.
By 2024, the picture had evolved dramatically. What began as emergency measures had matured into sophisticated permanent capabilities. Parliaments developed advanced security protocols, robust authentication systems, and stable voting platforms that went far beyond the basic video conferencing tools used during the initial crisis response. Many also discovered that digital operations enhanced citizen engagement through improved public access and transparency.
Countries like Estonia have become leaders in this space, building on their broader digital governance expertise to create seamless remote parliamentary operations. Brazil introduced a remote voting app that included facial recognition for Member validation. New Zealand's Parliament successfully maintained full legislative function during strict lockdowns, demonstrating that even complex legislative processes could be conducted effectively online. Canada's experience shows how federal systems can adapt these technologies across different levels of government while maintaining democratic accountability.
These international experiences demonstrate that remote parliamentary operations can maintain democratic legitimacy while providing crucial continuity during emergencies. More importantly for Congress, they show that advance planning and investment in proper infrastructure can make the difference between scrambling during a crisis and having robust systems ready when needed.
POPVOX Foundation’s Recommendation
In the Fiscal Year 2026 Appropriations cycle, POPVOX Foundation offered this recommendation for language to be included in the Legislative Branch Appropriations bill to explore options for remote operations and voting:
Remote Voting and Continuity of Congress. As international and domestic threats evolve, the need for a secure and reliable remote voting system is an essential investment for the continued operations of the House of Representatives. Current voting procedures do not accommodate circumstances where Members are unable to physically be present. To address this gap, the Committee directs the House Clerk, within 180 days of issuance of this report, to explore the cost and feasibility of implementing a secure and reliable remote voting system for Members, and submit the findings in a report, along with information on such a system's potential impacts on legislative efficiency, security protocols, and Member participation to the Committee on Appropriations, the Committee on Rules, and the Committee on House Administration.
This recommendation recognizes that emergency preparedness requires advance planning, not reactive scrambling.
Conclusion: Prepared for the Future
The 5th Circuit's decision in State of Texas v. Bondi represents more than just validation of pandemic-era proxy voting. It provides constitutional clarity that enables Congress to thoughtfully prepare for various emergency scenarios that could make travel or physical convening unsafe or impossible.
With the physical presence question now resolved, it is time for Congress to move forward in ensuring it is prepared to act on behalf of the People, even in potential future emergencies. This means developing robust remote capabilities, updating infrastructure, and creating clear protocols for various emergency scenarios — all while maintaining the democratic accountability and institutional integrity that the Quorum Clause was designed to protect.
The Constitution, as the 5th Circuit reminds us, was designed to endure for ages to come. This decision ensures that Congress can fulfill its constitutional role even when circumstances prevent traditional modes of assembly — a crucial capability for maintaining democratic accountability and preserving checks and balances in an uncertain world.
